Citation Nr: 1108159
Decision Date: 03/01/11 Archive Date: 03/09/11
DOCKET NO. 07-32 488 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for basal cell carcinoma of the face and ears.
2. Entitlement to service connection for basal cell carcinoma of the chest and back.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
Nicole Klassen, Associate Counsel
INTRODUCTION
The Veteran had active service from July 1965 to June 1967, to include service in the Republic of Vietnam from July 1966 to June 1967.
This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in St. Petersburg, Florida.
This matter was previously before the Board in January 2010, at which time it was remanded for further development. It is now returned to the Board.
FINDING OF FACT
The Veteran's basal cell carcinoma of the face, ears, chest, and back was incurred in, or caused by, his active service.
CONCLUSIONS OF LAW
1. The criteria for service connection for basal cell carcinoma of the face and ears have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. § 3.303 (2010).
2. The criteria for service connection for basal cell carcinoma of the chest and back have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. § 3.303 (2010).
REASONS AND BASES FOR FINDING AND CONCLUSIONS
As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this case, because the Board is herein granting service connection for basal cell carcinoma of the face, ears, chest, and back, representing a complete grant of the benefits sought on appeal, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary.
The Veteran contends that his basal cell carcinoma of the face, ears, chest, and back, is causally related to his extreme exposure to sunlight during his service in Vietnam. Specifically, he has reported that, upon arrival in Vietnam, no medical or dental dispensary had yet been erected, and as such, most of his time was spent outdoors, without a shirt or hat on, while building living quarters and clinics. In this regard, the Veteran has indicated that it was normally sunny and hot and that no sunscreen was available. Moreover, the Veteran has reported that all of his multi-centric basal cells and areas of actinic keratosis have been located on parts of his body that typically had excessive sun exposure during service (i.e., his face, chest, ears, shoulders, and upper back). Further, the Veteran has indicated that, pursuant to his dermatologists' recommendations, for the past 35 years, he has not been outdoors without a hat, shirt, and sunscreen on. In this regard, he has reported that, he uses sun protection factor (SPF) 45 lotion on his face and lips, and SPF 30 lotion on his chest, shoulders, and upper back while outdoors; and wears full body clothing and a special hat with side shields while doing recreational sports (i.e., fishing) outdoors. Additionally, the Veteran has indicated that he has had to undergo numerous (i.e., over twenty) multi-centric basal cell carcinoma removal surgeries since 1969, and has been required to undergo annual skin cancer checks for the past 40 years. See March 2007 statement. Finally, the Board notes that the Veteran's military occupational specialty, as noted on his Armed Forces Of The United States Report Of Transfer Or Discharge (DD Form 214), was as a dental officer/dentist.
Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).
A Veteran may be granted service connection for any disease initially diagnosed after discharge, but only if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this regard, the Board must assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician's statement. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992).
The Veteran's service treatment records are devoid of evidence of a diagnosis of, or treatment for, basal cell carcinoma. Significantly, however, at the time of his June 1967 separation examination, the Veteran reported having a history of tumor, growth, cyst, and/or cancer, and on examination, he was noted to have a scar on the left side of his chest from removal of a benign mole.
Post-service, the Veteran has reported that he first began receiving treatment for his basal cell carcinoma from Dr. Harry Westphal in 1969, when multiple multi-centric basal cells were removed; however, the Veteran has indicated that because Dr. Westphal is now deceased, these records are no longer available. See March 2007 statement. A review of the Veteran's available post-service VA and private treatment records, including records from the Dr. Michael S. Leahy, Dr. Richard D. Fernandez, and Dr. Brian A. Harris, reveals that the Veteran has been receiving treatment for basal cell carcinoma since at least November 1980, and indicates that he received treatment prior to that date. Specifically, during treatment with Dr. Leahy in November 1980, the Veteran was noted to have a history of multiple basal cell carcinomas, mostly on his chest, back, and ears, which began in approximately 1968 or 1969, and which the Veteran related to his sun exposure while serving in Vietnam. Additionally, Dr. Leahy noted that it was evident that these carcinomas had been treated by dilation and curettage. Moreover, a review of the subsequent private and VA treatment records reveals that the Veteran has since continued to receive regular treatment for basal cell carcinoma and actinic keratoses of his face, ears, chest, and back.
Additionally, in a November 2007 letter, Dr. Kent Cutrer reported that he had served as the Veteran's Commanding Officer in the 241st General Dispensary in Cam Rahn Bay, Vietnam, from 1966 to 1967, while the Veteran was assigned to the dental section of the Dispensary. In this regard, Dr. Cutrer reported that, for the first several months in Vietnam, the Veteran's unit had lived in tents and worked in temporary structures, and that the Veteran had spent many hours in the sun and extreme heat without a shirt on while helping to build more permanent structures. Moreover, Dr. Cutrer reported that the Veteran's in-service sun exposure had been extremely excessive for the duration of his year in Vietnam, noting that, at that time, there was no training in the avoidance of sun exposure and that no sun screen had been available. Additionally, Dr. Cutrer noted that, since shortly after separation from service, the Veteran had suffered from multiple recurrent basal cell carcinomas of the skin. In this regard, Dr. Cutrer reported that the Veteran had been relatively young to have developed such a skin condition. Further, Dr. Cutrer reported that there was a direct correlation between the amount of sun exposure a person has and the subsequent severity and frequency of that person's basal cell carcinoma development. Finally, Dr. Cutrer reported that it could be easily concluded that, based on current medical knowledge regarding sun exposure, and given the Veteran's high degree and long duration of such exposure during service, his in-service sun exposure probably caused and contributed to his current skin cancers, which continued to be problematic.
Further, in a November 2007 statement, the Veteran's wife reported that she has known the Veteran since 1957, and could attest to the fact that he was first diagnosed with basal cell carcinoma in the very early 1970s, after returning from his tour of duty in Vietnam. In this regard, the Veteran's wife reported that the Veteran's dermatologist had informed them at that time that basal cell carcinoma was "the result of over-exposure to the intense rays being so close to the equator." Further, the Veteran's wife reported that no sun screen was available at that time. She also reported that, over the past 36 years, the Veteran has had to undergo numerous surgeries to remove cancer cells, has been required to undergo annual skin cancer examinations, and must always wear protective clothing and products.
Thereafter, in November 2010, the Veteran was afforded a VA dermatology examination. At the outset of the examination report, the examiner noted that he had reviewed the Veteran's claims file, noting that, although he had not developed any basal cell carcinomas in the past two years, the record revealed treatment for basal cells since 1980. The examiner also noted the Veteran's reports that his basal cell carcinomas and actinic keratoses began shortly after separation from service, and that he had since received multiple treatments for new lesions. Based on this review of the Veteran's pertinent medical history and his examination of the Veteran, the examiner diagnosed the Veteran with multiple basal cell carcinomas and actinic keratosis, noting that these conditions were currently stable. The examiner then went on to provide the opinion that it was not likely that any currently diagnosed skin disorder was related to the Veteran's period of active service, to include his presumed exposure to herbicides/Agent Orange while serving in Vietnam and/or his in-service sun exposure. In support of this opinion, the examiner noted that, pursuant to the Veterans Benefits Administration (VBA) guidelines, basal cell carcinoma and actinic keratotic lesions are not related to Agent Orange exposure. Moreover, the examiner pointed out that the Veteran's service treatment records failed to shows a diagnosis of, or treatment for, basal cell carcinoma or actinic keratosis during service.
As noted above, the Board must assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician's statement. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992).
Based on the foregoing, the Board finds that the preponderance of the evidence supports a finding that the Veteran's basal cell carcinoma of the face, ears, chest, and back was caused by in-service sun exposure. In making this determination, the Board notes that Veteran is competent to report having excessive sun exposure during his service in Vietnam. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Layno v. Brown, 6 Vet. App. 465 (1994) (holding that competent testimony is limited to that which the witness has actually observed, and is within the realm of his personal knowledge; such knowledge comes to a witness through use of his senses, that which is heard, felt, seen, smelled or tasted). Similarly, the Veteran is competent to report that he has experienced a continuity of symptomatology since service. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). It is within the Veteran's realm of personal knowledge whether he has developed new skin lesions and growths on his face, ears, chest, and back since 1968.
Moreover, the Board finds no reason to doubt the credibility of the Veteran in reporting his frequent and extensive exposure to sunlight during service, and a continuity of symptomatology since service. His records are internally consistent, and it is facially plausible that he was exposed to extreme sunlight while serving in Vietnam, especially given the evidence of record indicating that there were no permanent structures for him to work or live in upon arriving in Vietnam.
Further, in November 2007, the Veteran's Commanding Officer, who also happens to be a physician, Dr. Cutrer, provided the opinion that Veteran's high degree and long duration of sun exposure during service probably caused and contributed to his recurrent skin cancer. In this regard, the Board highlights that Dr. Cutrer's opinion is based not only on his medical knowledge, but also his first hand experience serving with the Veteran in Vietnam and his recollections regarding the degree of the Veteran's in-service sun exposure. The Board finds the well-reasoned and cogent medical opinion of Dr. Cutrer to be probative as to the etiology of the Veteran's basal cell carcinoma.
The Board also acknowledges the November 2010 VA examiner's opinion that the Veteran's currently diagnosed basal cell carcinoma and actinic keratosis are not likely related to his military service. However, after a careful review of the all of the medical and lay evidence of record, the Board, in its role as a finder of fact, finds that Dr. Cutrer's medical opinion, as well as the Veteran's reports of in-service sun exposure and a continuity of symptomatology since service, are more persuasive than the November 2010 VA examiner's conclusory opinion in determining the onset and etiology of the Veteran's basal cell carcinoma of the face, ears, chest, and back. In this regard, the Board finds it significant that the November 2010 examiner appears to have based his opinion solely on the fact that the Veteran's service treatment records failed to reveal treatment for, or a diagnosis of, basal cell carcinoma during service. Moreover, although the examiner noted the Veteran's reports of a continuity of symptomatology and treatment since approximately 1968 at the outset of the examination report, he does not appear to have considered this reported history when rendering his negative opinion. As such, the Board finds the November 2010 VA medical opinion to be of little probative value. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's reports, but instead relied on medical records to provide a negative opinion); see also Kowalski v. Nicholson, 19 Vet.App. 171, 179 (2005) (citing Reonal v. Brown, 5 Vet. App. 458, 461 (1993) and Swann v. Brown, 5 Vet.App. 229 (1993)) (stating that the Board is not bound to accept medical opinions that are based upon an inaccurate factual background); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that when the Secretary undertakes to provide a medical examination or obtain a medical opinion, he must ensure that the examiner providing the report or opinion is fully cognizant of the claimant's past medical history).
Therefore, the Veteran meets all of the elements required for service connection. He currently has basal cell carcinoma, and he has consistently reported the incidents in service which caused this condition, as is evidenced by his private treatment records, and his statements in support of his claim, and which is further bolstered by his Commanding Officer's November 2007 statements regarding the Veteran's in-service sun exposure, his wife's November 2007 statements regarding a continuity of symptomatology since separation from service, and the June 1967 separation examination report indicating that the Veteran had a scar on the left side of his chest from removal of a benign mole. Finally, Dr. Cutrer has attributed the Veteran's basal cell carcinoma of the face, ears, chest, and back to his sun exposure during service, thereby providing the necessary nexus between the claimed in-service injury and the present disability. Accordingly, applying the benefit of the doubt doctrine, all doubt is resolved in favor of the Veteran. See 38 C.F.R. § 3.102. Therefore, the Veteran's claims for service connection for basal cell carcinoma of the face, ears, chest, and back are granted.
ORDER
Service connection for basal cell carcinoma of the face and ears is granted.
Service connection for basal cell carcinoma of the chest and back is granted.
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DEMETRIOS G. ORFANOUDIS
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs